A Matter of Discretion in Immigration Reform and Arizona Law

A Matter of Discretion in Immigration Reform and Arizona Law

Article excerpt

Arguments made in Wednesday's Supreme Court hearing on the
Arizona immigration law get to the heart of the national debate: How
much discretion to give to police and prosecutors?

Every day in America, hundreds of law enforcement officials make
a tough call on whether to:

1. detain people on suspicion they are illegally in the United
States, or

2. not prosecute them for that crime because it is considered a
low priority.

The first choice, made by police, can often be seen as racial
profiling, especially of Hispanics, despite safeguards against such
a practice.

The second choice, made by prosecutors for whatever reason, also
has troubling aspects. It can encourage both massive disregard of
the rule of law and perhaps more illegal immigration.

The two choices represent opposite sides of an issue now playing
out in the presidential contest as well as in the Supreme Court. And
yet they are similar. They are both exercises of discretion by law
enforcement.

The right question then in this political and legal debate should
be this: When does either type of law enforcement discretion go too
far?

Will race be a factor in too many detentions of illegal aliens?
Will a low rate of prosecution encourage lawlessness in general and
also more border crossings - as well as greater hiring of such
workers by employers?

Fortunately, finding a balance to this question of discretion was
at the heart of Wednesday's hearing before the Supreme Court on
whether Arizona's 2010 law on illegal immigration is constitutional.
(Alabama, Georgia, Louisiana, and Utah have passed similar laws.)

A key provision in the law, SB 1070, requires Arizona police to
notify federal officials if someone detained on a nonimmigration
charge lacks evidence of legal residency. It is then up to the
federal government to decide whether to officially charge,
prosecute, and deport the person.

The Obama administration decided, it seems, to sue the state for
helping it enforce federal immigration law. Its lawyer argued that a
simple phone notification from a state would complicate the federal
role. Resources are limited, Donald Verrilli Jr. …